Ramu Mahatang Patel vs Rajkumar Dayaram Patel And Ors.
2004 Latest Caselaw 926 Bom

JUDGMENT

P.S. Brahme, J.

1. Heard learned counsel for the parties.The petitioner contested the election to 119 - Melghat (ST) assemblyConstituency. Respondent No. 1 - Rajkumar Patel was declared elected bymargin of 3335 votes, the petitioner polled 40363 votes, whereas respondent No.1 polled 43698 votes and respondent No. 2 - Dr. Ramesh Raikwar polled 14533votes. The election was contested by 8 candidates. The 119 Melghat (SC)Assembly Constituency was reserved for Scheduled Tribe Candidate. Therespondent No. 2 - Dr. Ramesh Raikwar does not belong to Scheduled TribeCandidate. The Nomination Paper of respondent No. 2 was improperly acceptedby the Returning Officer in spite objection recorded by petitioners Polling Agent.

2. The petitioner challenged the election of respondent No. 1 in this election petition Under Section 80 of the Representation of the People Act, 1951 on various grounds. The petitioner prayed that the election of respondent No. 1 as Member of Legislative Assembly of 110 - Melghat (ST) Assembly Constituency in the election which are held on 5-9-1999 be declared as void and illegal and the result declaring him elected as Member of Legislative Assembly No. 119 -Melghat (ST) Assembly Constituency in the election be set aside and the petitioner be declared elected as Member of Legislative Assembly of 119 Melghat (ST) Assembly Constituency at the elections held on 5-9-1999. The petitioner also sought for ancillary reliefs.

3. The learned counsel for the petitioner has only pressed two points : 1) Improper acceptance of Nomination Paper of respondent No. 2 and 2) As a result of improper acceptance of the Nomination Paper of respondent No. 2, the result of the election has been materially affected.

4. The averments in the petition relating to these two grounds are as Under: The respondent No. 1 to 8, all submitted their nomination papers to the Returning Officer. Respondent No. 5 had submitted two nomination papers out of which one nomination paper was rejected and other nomination paper was accepted. The respondents No. 5 to 8 had withdrawn their candidature on and before the date of withdrawal of candidature. As such after the date of withdrawal was over, the respondent Nos. 1 to 4 and the petitioner were in the fray of elections for the said Melghat Assembly Constituency. At the time of scrutiny of nomination papers Mr. Dnyaneshwar Bhise - Election Agent of petitioner had filed objection before the Returning Officer on 19-8-1998 at about 11.35 a.m. stating that respondent No. 2 - Dr. Ramesh Raikwar did not belong to Adiwasi Korku Tribe and the Scheduled Tribe, that the 119 Melghat (ST) Assembly Constituency was reserved for the Adiwasi Korku Tribe, that in the Government Resolution No. CBC- 1494/Pra. Kra-Ma. V. K.-5 dated 18th November, 1995 "Halba" caste is deleted from the list of Adiwasi Tribes and that by Government Resolution dated 13-6-1995, "Halba Koshti" is included in the list of Special Backward Classes. It was stated in the abovementioned objection that in view of the Government Resolutions, the candidature of the Nationalist Congress Party i.e. of respondent No. 2, cannot be treated as a candidate of Adiwasi Tribe and 119 Melghat (SC) Assembly Constituency being reserved for the Scheduled Tribe, the respondent No. 2 was not entitled to contest from the said constituency. It was prayed that his nomination paper be rejected. However, the Returning Officer rejected the objection on the ground that respondent No. 2 had produced the caste certificate which showed him to be belonging to "Halbi" caste and that caste certificate was signed by the Sub Divisional officer and he was a scheduled tribe candidate.

5. It is contended by the petitioner that the respondent No. 2 does not belong to the "Halbi" caste and is not a scheduled tribe. That it is revealed from the copy of the caste certificate that the certificate is issued on the strength of 1) School leaving certificate of respondent No. 2, 2) Copy of admission register in respect of respondent No. 2 and his father, 3) transfer certificate of father of respondent No. 2,4) birth certificate of father of respondent No. 2, 5) copy of the records of rights register in respect of grandfather of respondent and 6) the affidavit. It is contended that the caste certificate of respondent No. 2 has not been validated and it is yet to be scrutinized by the Scrutiny Committee. The entry in the birth register maintained by the Police Station, Achalpur in respect of birth of a male child to Tukaram Ganpat Bunkar and it does not show that Tukaram Ganpat belong to the Halbi Caste, or Scheduled Tribe. It is contended that from the documents on the basis of which birth certificate or caste certificate was obtained by respondent No. 2, it is clear that the ancestors of respondent No. 2 are Koshti and not Halbi and/or Scheduled Tribe.

6. It is further contended in the petition that Nomination paper of respondent No. 2 was improperly accepted by the Returning Officer as a consequence of which respondent No. 2 contested the election and secured 14533 votes. Petitioner secured 40363 votes while respondent No. 1 who is elected candidate secured 43698 votes. Difference between the votes secured by respondent No. 1 - the elected candidate and the petitioner is 3335. If the nomination paper of respondent No. 2 would not have been accepted by the Returning Officer then the petitioner would have got more than 10000 of votes secured by respondent No. 2. In any case the figure shows that the improper acceptance of nomination papers of respondent No. 2 has materially affected the result of the elections.

7. It is averred in the petition that, it is settled law that an impossible standard of proof should not be laid down and the reasonable probabilities should be given weightage. The respondent No. 2 - Dr. Ramesh Tukaram Raikwar, whose nomination paper has been improperly accepted, has secured disproportionately large number of votes than the difference between the number of votes obtained by the respondent No. 1 - and petitioner who has obtained next higher number of votes. The result of the election insofar as it concerned the respondent No. 1 is materially affected because of improper acceptance of nomination paper of respondent No. 2. Therefore, the election of respondent No. 2 has to be declared as void on the ground as specified in Section 100(l)(d)(i) of the Representation of People Act, 1951.

8. I do not find it necessary to narrate other averments in the petition in respect of other grounds of challenge as the learned counsel for the petitioner restricted his challenge to the election of respondent No. 1 to only above mentioned two grounds.

9. Respondent No. 1 resisted the petition by his written statement - Exhibit 18. It is denied that the nomination paper of respondent No. 2 was improperly accepted. It is further denied that as a result of improper acceptance of nomination paper of respondent No. 2, the election of this respondent is materially affected. It is denied that Halba Koshti is and/or was not recognised by Government of India as a Scheduled Tribe. It is denied that the respondent No. 2 could not be treated as candidate of Adiwasi Tribe and/or Scheduled Tribe. It is denied that respondent No. 2 was not eligible to contest election. It is denied that respondent No. 2 belongs to Halba Caste and that he is not Scheduled Tribe candidate. It is denied that the caste certificate of respondent No. 2 has not been validated by Caste Scrutiny Committee. It is admitted that transfer certificate dated 22-10-1999 issued by Head Master, Nagar Palika Marathi School Abbaspur, District, Achalpur shows the date of birth of respondent No. 2 as 22-2-1953. It is denied that the entry of date of birth of respondent No. 2 and the name of father of respondent No. 2 is shown as Tukaram Ganpat Bunkar. It is denied that copy of date of birth register of Police Station Achalpur deposited in the office of Collector, Amravati shows that there is an entry at page 94 in the register of 1953 showing the birth details of a male child whose father's name is shown as Tukaram Buwaji Bunkar and the date of birth is shown as 22-2-1953. It is denied that the father of respondent No. 2 did not belong to Halbi Caste and/or Scheduled Tribe. It is denied that there is material discrepancy as to the date of birth in copy of relevant extracts of birth - register and certificate appended by respondent No. 2 with his certificate. It is denied that if the nomination paper of respondent No. 2 were not to be accepted by the Returning officer, then the petitioner would have got more than 10000 votes secured by respondent No. 2. It is denied that the figures show that improper acceptance of nomination paper of respondent No. 2 has materially affected the result of election of 199 Melghat (ST) Assembly Constituency It is denied that respondent has secured disproportionately large number of votes with reference to the number of votes obtained by respondent No. I and the petitioner. It is denied that there has been improper acceptance of Nomination form, much less that of respondent No. 2. It is prayed that the petition is liable to be rejected.

10. The petitioner's claim is resisted by respondent No. 2 by his written statement - Exhibit 14. It is submitted that Government Resolution No. CBC-1494/Pra.Kra. 236-Ma. V. K.-5 dated 18th November, 1995 deleting Halba Tribe from the list of Government Resolution dated 13-6-1995 adding Halba Koshtis to Special Backward Class is ultra vires of the Constitution as State Government has no authority pr power to amend/modify/delete Scheduled Tribe's list approved by the Parliament. The frequent inconsistent stand on status of Halbi by the State Government is due to interference of the likes of petitioner, who has enjoyed the privilege of being a Minister in the State of Maharashtra is only with the intention of political gains. That respondent No. 2 is filing documents as per the list of annexures in support of his caste claim. It is submitted that the authority issuing caste certificate has scrutinized ancient documents on which the caste claim of respondent No. 2 is based. Scrutiny Committee also verified caste claim of respondent No, 2 and declared that the caste claim of respondent No. 2 is treated as valid of his belonging to Scheduled Tribe. However, the claim was made subject to SLP 16273/1986 pending before the Supreme Court of India. It is contended that "Halba -- Koshti" is a sub-caste of Koshti, as held by the Scrutiny Committee is without any proof or any documentary evidence. Documents enclosed in the list of annexures will reveal that the respondent No. 2 belongs to Halbi tribe and profession of his forefathers was weaving. It is due to political interference in the working of the scrutiny committee and the pressure brought on them by the political bosses, unnecessary aberrations are created and during caste certificate scrutiny for political gains harassing the members of Halbi community in general.

11. It is specifically denied that respondent No. 2 does not belong to Halbi Scheduled Tribe. It is admitted that the certificate issued by S. D. P. O. Achalpur on 31-7-1998 was deposited by respondent No. 2 to the Returning Officer. It is submitted that respondent No. 2 has contested election earlier and at that time also, he deposited the caste certificate. The caste certificate of the respondent No. 2 has been validated by the Caste Scrutiny Committee and the statement of the petitioner in respect of invalidation is abundantly false. It is admitted that the date of birth of respondent No. 2 is 22-2-1953. It is contended that a copy of an extract of Birth Register of Police Station, Achalpur deposited in the office of the Collector, Amravati filed by the petitioner appears to be tampered or in respect of some other person for the reason that "Bunkar" is not the term used in local parlance in Achalpur for any caste/community. The column pertaining the caste is left blank. Extract enclosed with the reply of the Birth Register in respect of respondent No. 2 unambiguously show that his father as well as his profession and the document is ancient. It is presumed that all the documents of caste-claim of respondent No. 2 are duly verified by the Caste Scrutiny Committee before admitting the claim of respondent No. 2. It is admitted that the name of father of respondent No. 2 is Tukaram and his grandfather's name is Ganpat. It is submitted that the petitioner be put to strict proof of his claim particularly when the extract of birth produced by the petitioner shows the name of son born on 22-2-1953 as "Enka?" and extract of the same filed by respondent No. 2 from the records of Nagar Parishad Achalpur City indicates profession of father of respondent No. 2 as weaving and there is no entry as regards the name of the child born. Extract also indicates caste of father of respondent No. 2 as Halbi. Contention in the paragraph 7 of the petition have been denied. It is denied that the acceptance of nomination paper of respondent No. 2 was improper. There is no logical basis for the contention of the petitioner that he would have got more than 10,000 votes secured by the respondent No. 2 had the nomination of respondent No. 2 not been accepted by the Returning Officer. It is therefore, contended that there is no merit in the claim of the petitioner to declare the election results as void. Contents of paragraphs No. 11, 12, 13, 14, 15, 16, and 18 and 19 of the petition have been denied to the extent they are adverse to the respondent No. 2. It is prayed that the petition be dismissed.

12. On the basis of the pleading of the parties to this petition, this Court has framed issues vide Exhibit 20. However, the learned counsel for the petitioner has restricted challenge to the two issues only. Therefore, the parties went on trial to the restricted grounds of objection. The issues for my consideration with my findings thereon are as Under :

  ________________________________________________________________________________
Sr.                               Issues                              Finding
No.
________________________________________________________________________________
1.      Whether the nomination paper of respondent No. 2 was             No
        accepted improperly by the Returning Officer?
2.      Whether as a result of improper acceptance of                    No
        nomination paper of respondent No. 2 the election of
        respondent No. 2 is materially affected?
3.      Is the petitioner entitled to the declaration sought for?        No
4.      What order?                                         Petition is dismissed.
__________________________________________________________________________________
 

 The petitioner led his own evidence before the Court. The reliance is placed on the documents which petitioner filed along with the petition. No oral evidence has been led by respondents No. 1 and 2. However, on behalf of respondent No. 2 documents have been filed along with written statement. I have heard Mr. Haq, the learned counsel for the petitioner and Mr. Chavhan, learned Advocate holding for Mr. Dharmadhikari, Advocate for respondent No. 1 and Mr. Pachbhaiye, learned Advocate for respondent No. 2.
 

13. Mr. Haq, the learned counsel for the petitioner submitted that at the time of scrutiny of nomination papers, petitioner's Election Agent raised objection to the nomination paper of respondent No. 2 contending that respondent No. 2 did not belong to Adiwasi Korku Tribe - Scheduled Tribe and that in the government resolution dated 18-11-1995 "Halbi" caste is deleted from the list of Adiwasi Tribes and that by government resolution dated 13-6-1995 "Halba Koshti" is included in the list of Special Backward Class. He submitted that Scheduled Tribe Caste Scrutiny Committee, Maharashtra State, by Order dated 12th August, 1994 concluded that the respondent No. 2 belongs to "Halba Koshti" and he was treated as Scheduled Tribe in view of the judgment of this Hon. Court given in Writ Petition No. 2944/1984 on 4th/6th September, 1995. He submitted that Caste Validity Certificate of respondent No. 2 was given subject to the decision of Hon. Supreme Court of India in S. L. P. No. 16372/1986. He submitted that the Hon. Supreme Court of India in the decision reported in 2001(1) Mh, L. J. (SC) 1, has held that "Halba Koshti" caste is not a sub-tribe within the meaning of Entry 19 - Halba/Halbi of the Constitution (Scheduled Tribes) 1950 as amended by Act No. 108 of 1976 relating to the State of Maharashtra. The learned counsel further submitted that in the judgment reported in AIR 1969 SC 597 - it is held that - Court cannot scrutinize the Gazetteers and glossaries for the purposes of ascertaining whether a person belongs to a particular caste or. not. The learned counsel therefore, submitted that the respondent No. 2 was not belonging to Scheduled Tribe and as such his nomination paper was accepted improperly by the Returning Officer.

14. The learned counsel referring to the issue relating to "the result of election has materially affected" submitted that the Apex Court in AIR 1984 SC 146, Chhedi Ram, v. Jhilmit Ram and Ors., held as Under :

"The election of a returned candidate shall be declared to be void if the High Court is of the opinion that the result of the election, insofar as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. True, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself. On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted, obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes. In both these situations, the answers are obvious. The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a larger number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes. The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate, so as to upset the result of the election, but whether a sufficient number of voters would have so done, would ordinarily remain a speculative possibility only. In this situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the number of votes secured by the candidate whose nomination was improperly accepted is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number, of votes, it would be next to impossibility to conclude that the result of the election has been materially affected. But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and it would have to be concluded that, that fact was proved."

15. Mr. Haq given much emphasis on the fact that difference of votes secured by the petitioner and respondent No. 1 [returned candidate] is less than the votes secured by respondent No. 2, whose nomination was wrongly accepted, it has to be held that improper acceptance of nomination of respondent No. 2 has materially affected the election of respondent No. 1.

16. Mr. Haq, learned counsel for the petitioner submitted that in view of the decision of the Apex Court in 2001(1) Mh. L. J. (SC) 1 respondent No. 2 cannot claim to be belonging to Scheduled Tribe inasmuch as the caste Halba Koshti is declared as Special Backward Class. He pointed out that Caste Scrutiny Committee has validated the caste certificate of respondent No. 2 subject to the decision of the Apex Court in SLP 16372/1986. If that is so, then as a consequence of the decision of the Apex Court in 2001(1) Mh. L. J. (SC) Page 1 it has to be held that acceptance of nomination paper of respondent No. 2 was improper. He therefore, urged that as a result of improper acceptance of nomination of respondent No. 2, the election of respondent No. 1 is materially affected and as such petitioner is entitled to the declaration as sought for. The election of respondent has to be set aside.

17. Mr. Chavhan, the learned counsel for respondent submitted that mere improper acceptance of nomination paper of respondent No. 2 itself is not sufficient to hold the election of respondent No. 1 void as it is further incumbent on the petitioner to prove that the result of election has materially affected. The election of respondent No. 1 can be set aside on the ground of improper acceptance of nomination paper of respondent No. 2 only when the petitioner further establishes that as a consequence of such improper acceptance the result of the election has been materially affected. He submitted that there is no evidence except bare statement of petitioner that he would have secured entire votes secured by respondent No. 2 if his nomination paper would have been rejected. He has not discharged the burden. He has to give evidence to show that he would have secured entire 14533 votes polled by respondent No. 2. He submitted that respondent No. 1 is declared elected as he has secured highest number of votes, if that is so, then the petitioner cannot claim declaration to invalidate the election of respondent No. 1 merely showing that acceptance of nomination paper of respondent No. 2 was improper. In that regard he has placed reliance on the decision of the Apex Court in (2003) 7 SCC page 709, Harish Kumar - Appellant v. Bhagwan Sahai Rawat and Ors. - Respondents. In that case it is held by the Apex Court that the success of a winning candidate at a election should not be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why, the scheme of Section 100 of the Act, especially Clause (d) of Sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by Sub-clauses (i) to (iv) of Clause (d), the election of a returned candidate shall not be voided unless and until it is proved that the result of the election, insofar as it concerns a returned candidate was materially affected. In that case it was found that there was no evidence to show the material effect on the election of the respondent elected candidate assuming that the nomination paper of another candidate was improperly accepted.

18. The learned counsel for respondent No. 1 further submitted that the caste certificate of respondent No. 2 cannot be invalidated by the judgment of the Apex Court in 2001 Mh. L. J. (1) (Supra) dated 28-11-2002 as his caste claim was validated in respect of acceptance of nomination paper was considered by the Returning Officer. The learned counsel submitted that his caste claim which was validly accepted by the Scrutiny Committee which is accepted by the Returning Officer while accepting the nomination paper cannot be invalidated by the decision of the Apex Court given subsequently on 28-11-2000.

19. The learned counsel Mr. Pachbhaiyye for respondent No. 2 submitted that the caste certificate of respondent No. 2 was at the time of acceptance of his nomination was valid due to decision of law laid down then by the High Court. He also submitted that caste of respondent No. 2 is recorded as "Halbi" and not as "Halba Koshti" and therefore, decision of the Apex Court in 2001(1) Mh. L. J. (1) (supra) is not applicable. He also placed reliance on unreported judgment of this Court in Writ Petition No. 539 of 2002 - Harischandra Tukaram Balsaraf v. State of Maharashtra and Ors. decided on 7th March, 2002 wherein that the decision of the Caste Scrutiny Committee invalidating the caste of the petitioner is set aside. It was contended before the Court that the committee has erroneously held that "Halbi" is sub-caste entry of Koshti. This Court while rejecting the submissions of respondents observed that it is not possible to agree with the view taken by the second respondent inasmuch as it is not settled position of law that it is not permissible for the Court or any authorities to interpret the entries in the Presidential Notification and the entries are required to be taken as it stands. The Court held that in the light of voluminous documentary evidence submitted by the petitioner, it is not possible to discard his caste claim on the basis of vigilance report.

20. In that case the petitioner claimed his caste "Halbi", however, the Caste Scrutiny Committee declared his caste as "Halba Koshti", that was challenged before the High Court. High Court in that matter referring to the judgment in Milind Katware's case 2001(1) Mh. L. J. (1) (Supra) set aside the decision of the Caste Scrutiny Committee. Learned counsel submitted that in the case at hand the petitioner has not challenged the caste certificate issued by the Caste Scrutiny Committee to respondent No. 2 at any point of time. Learned counsel pointed out from the documents on record that the petitioner has produced fabricated documents that respondent No. 2 belongs to Halba Koshti. Learned counsel on the contrary on the basis of the documents produced by respondent No. 2 pointed out that respondent No. 2's caste was "Halbi". Documents on which respondent No. 2 has placed reliance in this petition have not been controverted by the petitioner. Therefore, the learned counsel submitted that the petition merits no consideration at all, and the same should be dismissed.

21. There is no quarrel over the proposition that the success of winning candidate at election should not be lightly interfered with. In case of improper acceptance of nomination paper of a candidate other than the elected candidate, the election of the returned candidate cannot be set aside on that ground, unless the election petitioner further establishes that as a consequence of such improper acceptance, the result of the election has been materially affected. The Apex Court in 1954 AIR SC 513, Vashist Narain Sharma, Appellant v. Dev Chandra and Ors., Respondents while construing words "result of election has been materially affected" has held that result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidates. The onus of proving it lies on the person who challenges the election and in case satisfactory evidence is not adduced the result of the election would not be interfered with. This decision has been cited with approval in catena of subsequent decisions [See Santosh Yadao v. Narender Singh, (2002) 1 SCC 160} it has again been reiterated by the Apex Court that the success of a winning candidate at election should not be lightly interfered with. This is all more so when the election of a successful candidate is sought to be set aside for no fault of his but of some one else. It is also clear in mind that the scheme of section 100 of the Representation of People Act, especially Clause (d) of Sub-section (i) thereof clearly prescribes that inspite of availability of grounds contemplated by Sub-clause (i) to (iv) of Clause (d) the election of a returned candidate shall not be voided unless and until it is proved that the result of the election insofar as it concerns to a returned candidate was materially affected.

22. In the instant case, there is no evidence to show material effect on the election of respondent No. 1 assuming that the nomination paper of respondent No. 2 was improperly accepted. It is true that the votes secured by respondent No. 2 are almost three times more than difference of votes secured by respondent No. 1 and petitioner, but then in the absence of any material on record, it would be just by way of speculation to assume that entire votes secured by respondent No. 2 could have been secured by the petitioner, in case the nomination of respondent No. 2 were to be rejected. The possibility of respondent No. 1 having some more votes of the votes secured by respondent No. 2 cannot be ruled out. That is why it is said by the Apex Court that mere increase or decrease of votes secured by the candidate is not itself a criteria even to have speculation that the candidate who has lost election would have secured all the votes which were secured by the candidate whose nomination was improperly accepted. Therefore, it cannot be concluded that the election of respondent No. 1 would be materially affected as a result of improper acceptance of the nomination paper of respondent No. 2. As such issue No. 2 is answered in the negative.

23. As regards the issue relating to the improper acceptance of nomination taking into consideration the documents filed by the respondent No. 2 it has to be said that no error is found in validating his caste claim by the Caste Scrutiny Committee declaring him to be belonging to Scheduled Tribe. It is significant to note that the documents on which the Caste Scrutiny Committee has placed reliance undoubtedly showed that the petitioner was belonging to "Halbi" caste. It is true that the Apex Court in the decision in 2001(1) Mh. L. J. 1 (supra) has held that the caste Halba Koshti is not Scheduled Tribe. However, that decision is of no avail so far as respondent No. 2 is concerned inasmuch as the Caste Scrutiny Committee has validated his caste claim on the basis that he is belonging to "Halbi" which is declared as Scheduled Tribe. That apart the claim of respondent No. 2 as to his caste as Scheduled Tribe is validated by the Caste Scrutiny Committee, further fortified by decision of our High Court in Writ petition No. 539/2002 relied upon by the counsel for the respondent No. 2. Apart from that decision of the Apex Court in 2001(1) Mh. L. J, 1 (SC) (supra) dated 28-11-2002 cannot invalidate the caste claim of the respondent No. 2 which was duly accepted by the Caste Scrutiny Committee and that is much more so, petitioner has not at any time challenged that caste claim of respondent No. 2. In other words in my opinion at the time when the Returned Officer scrutinized the nomination paper of candidates contesting the election in view of the law laid down by the Apex Court as also by this Court, the caste claim of the respondent No. 2 was valid and therefore, it has to be said that acceptance of nomination paper by the Returning Officer was proper and legal. Therefore, I do not find that Returning Officer committed an error in accepting the nomination paper of respondent No. 2.

24. As a consequence of recording finding on issue Nos. 1 and 2 accordingly, petitioner is not entitled to the declaration sought for. It is found that the declaration of election of respondent No. 1 is not materially affected as a result of acceptance of nomination of respondent No. 2. Therefore, the petitioner is not entitled to the declaration sought for. Petition, therefore, has to be dismissed.

25. The learned counsel for respondent No. 2 has submitted that petitioner has produced fabricated documents to substantiate his claim. He therefore, urged that action be taken against the petitioner for fabrication of documents. In the absence of any evidence, it is very difficult to hold that the documents on which the petitioner has placed reliance relating to caste claim of respondent No. 2, are fabricated. Therefore, no such direction for prosecution of petitioner can be given to the respondent No. 2. It is however, made clear that respondent No. 2 is at liberty to initiate proceedings against petitioner in that regard if permissible in law. Hence the Order.

ORDER

Petition is dismissed with no Order as to cost.